of action for initiating criminal proceedings under this section will arise.Constitutional validity of the provisionsIn B. Mohana Krishna v. Union of India, the question came up for consideration that whether thepresumption raised in section 139 that the holder of the cheque received the cheque of the naturereferred to in section 138, unless the contrary is established is violative of Article 20 (3) of theConstitution of India. The Court while answering negative held that:"
Unless a person is compelled to be a witness against himself Article 20 (3) has no application. The person charged under section 138 is not compelled to be a witness against himself. The presumptionof the nature incorporated in section 139 is a common feature in criminal statutes for examplesection 12 of the Protection of Civil rights Act. The presumption under section 139 in favour of holder of cheque would not, therefore be violative of Article 20 (3)."
Further such imposition of strict liability was put to judicial scrutiny on grounds of unreasonablenessand arbitrariness in Mayuri Pulse Mills v. Union of India where the Bombay High Court held that:
"Normally in Criminal law existence of a guilty intent is an essential ingredient of a crime and the principle is expressed in the maxim ‘actus non facit rum nisi mens sit rea’. This is a general principle.However the legislature can always create an offence of absolute liability or strict liability are justified and cannot be said to be unreasonable."
Section 138 was also put to test in Ramawati Sharma v. Union of India in light of Article 21 of theConstitution of India where the court held that;
"Mere taking of loan is not, thus, made punishable under certain circumstances and after followingcertain conditions. It may not, therefore, be stated that the liberty of a person was being curtailed by an arbitrary procedure or that such a provision is violative of Article 21 of the Constitution"
In K.S. Anto v. Union of India the question of double jeopardy as enshrined in Article 20 (2) in light of section 138 and section 420 of the Indian Penal Code where the court held that:
"Offences under section 138 of the Negotiable Instruments Act and section 420 of the Penal Code aredifferent and the ingredients are different and the ingredients are also different. Convictions for different offences separately is not barred under article 20 (2). In spite of prosecutions and convictions under section 138, there will be no constitutional bar in prosecution for an offence punishable under section 420 of the Penal Code and a prosecution will be if such an offence is madeout."
Question of maintainability of criminal charge with a civil liability:There is nothing in law to prevent the criminal courts from taking cognizance of the offence, merelybecause on the same facts, the person concerned might also be subjected to civil liability or becausecivil remedy is obtainable. Civil and criminal proceedings are co extensive and not exclusive. If theelements of the offence under section 138 of the Negotiable Instruments Act are made out on theface of the complaint petition itself, enforcement of the liability through a civil court will notdisentitle the aggrieved person from prosecuting the offender for the offence punishable undersection 138 of the ActConclusionThough insertion of the penal provisions have helped to curtail the issue of cheque lightheartedly or